Another Take on the Targeting and Minimization Procedures

Newly released documents confirm what critics have long suspected---that the National Security Agency, a component of the Defense Department, is engaged in unconstitutional surveillance of Americans' communications, including their telephone calls and emails. The documents show that the NSA is conducting sweeping surveillance of Americans' international communications, that it is acquiring many purely domestic communications as well, and that the rules that supposedly protect Americans' privacy are weak and riddled with exceptions. The FISA Amendment Act, signed into law by President Bush in 2008, expanded the government's authority to monitor Americans' electronic communications. Critics of the law feared the NSA would use the law to conduct broad surveillance of Americans' international communications and, in the process, capture an unknown quantity of purely domestic communications. Government officials contended that the law authorized surveillance of foreign nationals outside the United States---not of Americans---and that it included robust safeguards to protect Americans' privacy. Last year, in a successful effort to derail a constitutional challenge to the law, the Obama administration made these same claims to the U.S. Supreme Court. Now The Guardian has published two previously secret documents that show how the FISA Amendments Act is being implemented. One document sets out the government's "targeting procedures"---the procedures it uses to determine whether it has the authority to acquire communications in the first place. The other sets out the government's "minimization procedures"---the procedures that govern the retention, analysis, and dissemination of the communications it acquires. Both documents---the "Procedures"---have apparently been endorsed by the Foreign Intelligence Surveillance Court, which oversees government surveillance in some national security cases. The Procedures are complex, but at least some of their flaws are clear.